The claimant was employed by the respondent University as a lecturer in the School of Finance.  The case arose out of the claimant’s failed application to the position of Professor of Finance.  He was informed by email on 9th June 2017 that he had been unsuccessful and he sought feedback on why he had not been shortlisted.  He was informed that he failed to meet two criteria those being a “sustained publication record of international excellence in field of specialisation,” and a “record of securing external research funding”.  He was also erroneously informed that nobody had been shortlisted when in fact three of the eighteen applicants had been.

The basis of the claimant’s claim was victimisation based upon the fact that the recruitment process was abandoned as he was the best applicant but also due to successful Tribunal claims that he had brought in 1995.  Furthermore, the claimant argued that he was subject to direct religious and race discrimination as he was of Indian ethnicity and his religion is Hindu. The view put across by the claimant and reflected in the judgment by the Tribunal was that the claimant stated those who were white were ‘predisposed’ to treat him less favourably which he also attached to the respondent’s legal team and stated the Tribunal had a tainted religious composition.  There was no evidence adduced in relation to any of these accusations.

On the point of having a sustained publication record and record of external research funding, the Tribunal found that both the last publication and the last external funding was in 2000.  It was also found that the ‘potential publications’ outlined by the claimant were not in journals of sufficient prestige to demonstrate ‘international excellence’.  On the issue of race discrimination, the Tribunal referred to the decision in London Borough of Islington v Ladele & Liberty [2009] IRLR 154 when Elias J held that the ‘crucial question’ in direct discrimination claims is the reason why the claimant was treated as he was.  If the reason for the treatment is one of the prohibited grounds, even if it is not the main reason, then this can be sufficient to establish discrimination, however it must be more than trivial - Igen v Wong [2005] IRLR 258.

The Tribunal held that the criteria outlined by the respondent for the appointment process was appropriate and held that it would have been ‘significantly at odds with the clear instructions within the respondent’s established policies’ had it shortlisted the claimant.  As a result, the Tribunal held that the discrimination claims fell well short of the ‘modest’ statutory threshold and the case was dismissed.

Practical Lessons

This case demonstrates the general workings of the law on direct discrimination.  It demonstrates that there must be a prohibited ground shown as some reason for the decision that has been made.  The Tribunal is right in stating that this is a modest threshold but it does not mean it is met in every case.  The Tribunal were able to delve into the background of this case, the criteria and how decisions were reached across the board.  For this reason, it is good to have appropriate notes and records kept in relation to promotion advertisements that will demonstrate the reasoning behind making decisions.